Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

Posts categorized "Column"

Thursday, 30 October 2014

A prisoner whose confession helped free a death row inmate in a case that was instrumental in the campaign to end capital punishment in Illinois was released Thursday after he recanted and a prosecutor said there was powerful evidence that the other man was responsible.

Alstory Simon left the Jacksonville Correctional Center Thursday afternoon. His confession in the high-profile case had gained international attention, in large part because of an investigation of a team of journalism students from Northwestern University that helped secure the 1999 release of Anthony Porter.

Porter had spent 16 years on death row and his supporters maintained he was wrongfully convicted.

Simon was convicted and sentenced to 37 years in prison. But the Cook County State's Attorney's Office began re-examining Simon's conviction last year after he recanted his confession.

In a stunning reversal, a Cook County judge on Thursday ordered the immediate release of Alstory Simon for a 1982 double-homicide, a case that was a key factor in bringing an end to the death penalty in Illinois.

Simon was convicted in the double murder after another man, Anthony Porter, was originally convicted for the crime but later released in a celebrated case that purported to show the flaws in the justice system.

Simon allegedly confessed to the crime, but serious questions were later raised about whether Simon had been coerced into confessing.

In another stunning reversal in a 1982 double murder, Cook County prosecutors have thrown out the conviction of 64-year-old Alstory Simon, whose videotaped confession freed Anthony Porter from death row in 1999, approximately 48 hours before Porter was to be executed.

A Cook County judge granted prosecutors’ request to order Simon’s immediate release from the Jacksonville Correctional Center on Thursday, after the Cook County State’s Attorney’s office asked to have Simon’s conviction vacated.

Advocates for Simon will no doubt be doing sack dances today and pointing the finger of blame for Simon's years of incarceration on the advocates for Porter who tracked down Simon and the journalists, including me, who accepted and heralded Simon's confession without sufficient skepticism.

SOME white Americans may be surprised to hear Archbishop Desmond Tutu describe Bryan Stevenson, an African-American lawyer fighting for racial justice, as “America’s young Nelson Mandela.”

Huh? Why do we need a Mandela over here? We’ve made so much progress on race over 50 years! And who is this guy Stevenson, anyway?

Yet Archbishop Tutu is right. Even after remarkable gains in civil rights, including the election of a black president, the United States remains a profoundly unequal society — and nowhere is justice more elusive than in our justice system.

When I was born in 1959, the hospital in which I arrived had separate floors for black babies and white babies, and it was then illegal for blacks and whites to marry in many states. So progress has been enormous, and America today is nothing like the apartheid South Africa that imprisoned Mandela. But there’s also a risk that that progress distracts us from the profound and persistent inequality that remains.

Vanity Fair also takes note of the book. It leads the montly Hot Type column in the November issue.

America the complicated. Defense lawyers down South are too often compared to Atticus Finch, but Bryan Stevenson, whose Just Mercy (Spiegel & Grau) chronicles his crusades for the rights of the oppressed and unjustly incarcerated, proves he's deserving.

Stevenson has been recognized internationally for his work to point out biases in the American criminal justice system that result in incarceration rates that rise or fall in a reverse relationship to the income of the accused.

"We have a system of justice in this country that treats you much better if you're rich and guilty than if you're poor and innocent," Stevenson said during his TED Talk in March 2012. "Wealth, not culpability, shapes outcomes."

And it's the disconnect between what is reality for so many in impoverished neighborhoods and the reality of Americans with adequate income, influence and sense of confidence that has resulted in a sense, for most Americans, that "these are problems that are not our problems," Stevenson said.

Nearly 14 years ago the state of Georgia asked two psychologists and a psychiatrist to evaluate a convicted killer named Warren Lee Hill Jr., who had filed a legal challenge to his death sentence on the grounds that he lacked sufficient intellectual capacity to understand why Georgia wanted him dead.

The psychiatrist, Thomas H. Sachy, who had no background in that kind of evaluation — he worked with brain injuries and seizure disorders — spent an hour with Hill, read some files, then shared his findings with the two psychologists, James Carter and Donald Harris, who together had spent two hours talking with Hill. They all concluded that Hill was malingering, understood what was happening and thus was eligible for execution.

Now all three experts acknowledge in court documents that they were wrong. But Georgia could well execute Hill anyway.

Monday, 15 September 2014

Executions in Pennsylvania are carried out in the name of the commonwealth, the people of Pennsylvania. The state government has a duty to the people to disclose details about the irrevocable punishment it intends to administer.

Unfortunately, U.S. District Judge Yvette Kane, of the Middle District of Pennsylvania, Harrisburg, sealed the name of the compounding pharmacy for a feeble reason: According to the state, the company might not provide the drugs if its name is revealed.

That’s the company’s problem, not a reason to keep Pennsylvanians in the dark about an execution to be conducted in their name.

The commonwealth claims the provider of the drugs wants to remain secret and if identified, the firm will halt delivery of its product.

Perhaps you don’t care where these drugs come from and whether or not they are safe. Convicted killers aren’t a particularly sympathetic lot, so those views are understandable.

But government secrecy has a habit of spreading. Citizens should always demand openness and accountability from government as a matter of fundamental policy.

Do you really want a system where government information is concealed based on little more than a whim on the part of a private business? If that is the standard, be prepared for all sorts of new secrecy to come down the pike.

Gov. Tom Corbett’s decision this week to indefinitely delay the execution of a convicted murderer illustrated some of the practical and legal challenges the state faces these days in carrying out the death penalty.

And:

Corbett, a former prosecutor, signed 35 execution warrants, but he’s trailing badly in the polls as he seeks re-election. The Democratic candidate, Tom Wolf, said he won’t sign the warrants and will issue temporary reprieves while the state studies the issue of wrongful convictions.

Friday, 12 September 2014

First of all, much praise to the Inquirer and City Paper. They’re among the publications joining the ACLU to sue the state to get information on the supplier of Pennsylvania’s lethal injection drugs. Journalism is all about getting information to the public, and sometimes a little extra pressure is needed: It’s good to see that both papers can still find ways to bring that pressure.

It would be better for everybody, though, if the suit weren’t needed.

It would be better for everybody if Pennsylvania didn’t have a death penalty at all.

Let’s skip the moral objections for now, because everybody has a moral stance on the issue — either for or against — and at this point, passionate moral arguments probably aren’t going to move the needle. So let’s talk about good governance. Because the death penalty — in Pennsylvania — and elsewhere, is lousy governance:

Four news organizations asked a federal judge in Harrisburg on Thursday to unseal information about where the Pennsylvania Department of Corrections plans to get drugs for use in executing inmates.

The Philadelphia Inquirer, Philadelphia City Paper, Pittsburgh Post-Gazette and the Guardian U.S. filed an emergency motion to intervene in a long-running federal lawsuit that challenges the state's execution procedures.

The newspapers said the Corrections Department has contracted with compounding pharmacies to obtain the drugs, but the court has prevented disclosure of the names of those pharmacies.

The suit also seeks to grant the public access to documents about the suppliers of drugs used in future state executions.

“In light of the recent string of horrifically botched executions, the public is entitled to know how the state obtained the drugs they plan to use to carry out executions here in Pennsylvania,” Reggie Shuford, executive director of the Pennsylvania chapter of the ACLU, said in a statement.

An email sent to the Department of Corrections seeking comment was not immediately returned.

Thursday, 11 September 2014

The power of the State—of government, in other words—is awesome. And nowhere is that power greater than when it controls life, death, and liberty. The Framers knew this kind of power can corrupt and believed in the principle, articulated much later by Lord Acton, that absolute power corrupts absolutely. They also believed that such power could be grossly misused in the hands not just of individuals acting on behalf of the State but also on behalf of the majority population, creating, in the words of John Adams, "tyranny of the majority." The whole constitutional structure, and the civil liberties built into the first 10 amendments to the Constitution, are grounded in those beliefs.

That immense power over liberty and life is especially evident in the criminal-justice system, in the hands of police and prosecutors.

Jan Brewer, the governor of Arizona, has offered rosy declarations about the integrity of her state’s execution protocols. “Justice was carried out today,” she announced after the gasping, snorting, two-hour execution of Joseph Wood on July 23. The process that day took so long that Wood’s attorneys found time, during the second hour of the jerky proceedings, to file a stay against an execution that had already begun. With typical sangfroid, Brewer dismissed chilling accounts offered by witnesses to the execution, saying simply: “Inmate Wood died in a lawful manner, and by eyewitness and medical accounts he did not suffer.”

Still, as the Arizona Department of Corrections continues its internal review of the Woods execution, including the possible contamination of the two drugs used that day (midazolam and hydromorphone), watchdogs of various stripes are assessing the historical credibility of the state’s chemical doings.

The emerging picture is a nightmare—the portrait of a state and its malleable “execution protocol” that allows presiding doctors and prison administrators shocking latitude in choosing where to stick their needles, and what those needles will contain.

Friday, 15 August 2014

Why keep trying to execute criminals? Killing to exact revenge — which is what state-sponsored executions in effect do — is a sign of a morally and intellectually inferior society. A society that kills to punish crimes fails its citizens and itself and forfeits any claim to being truly civilized. Executions have nothing to do with justice and, more to the point, have no deterrent effect on criminal activity, which may be why the United States is one of the few countries in the world to carry them out.

Executing criminals is, in my mind, linked to the unfettered use and ownership of guns in that both are relics of a less-developed, less civilized time. As humans and societies evolve, responses to abnormal behavior — in the case of executions — and to changes in the definition of personal freedom for the common good — as in gun control — must also evolve. To willfully refuse to do so is a national disgrace.

I have a well-developed sense of vengeance, which I try to keep under control, and I haven't yet shed any tears over an execution for a brutal act of violence. But I try rise above my many baser instincts, especially in matters of life and death. It's a struggle that I believe will ultimately make me a better person.

It's no longer high noon in this country, there is no more frontier, and the concept of frontier justice died long ago. It's time to bury it and its attendant Wild West mentality.

Monday, 11 August 2014

Leave it to bad government to make the death penalty – a hallmark of justice systems for thousands of years – look like a terrible idea.

To be sure, eloquent critics of capital punishment have made forceful moral arguments against the ancient eye-for-an-eye quality of killing the perpetrators of society’s most egregious and grievous crimes.

On July 23, Arizona joined the list of states that have recently had inhumane and perhaps unconstitutional executions when the death of Joseph Rudolph Wood by lethal injection took almost two hours to complete.

There is much we don't know about the death of Wood, but one thing we do know is that an independent investigation is needed to get to the bottom of what went so terribly wrong and how can we prevent it from happening again.

Following the long, ugly execution of Joseph Wood, Gov. Jan Brewer issued a statement that read in part, "While justice was carried out today, I directed the Department of Corrections to conduct a full review of the process. One thing is certain, however, inmate Wood died in a lawful manner and by eyewitness and medical accounts he did not suffer."

Really? DOC should investigate DOC? Even after Director CharlesRyan already said publicly that the execution was not botched?

Gee, I wonder what the department's findings will be?

Democratic State Sen. Ed Ableser released statement Friday calling for an independent investigation.

It's what the governor should have demanded from the start. And what the rest of us should demand now.

Another week, another botched killing under the legal euphemism of capital punishment. After macabre screw-ups in Oklahoma and Ohio, it was Arizona’s turn last week, when double-murderer Joseph Rudolph Wood III took about two hours to die. The specific problem this time around was an apparently unreliable “cocktail” of the drugs used in the lethal injection process.

But let’s face it: There’s no good way to kill a person, even one as completely unsympathetic as Wood (he killed his ex-girlfriend and her father, shooting them at point-blank range). As a libertarian, I’m not surprised that the state is so incompetent that it can’t even kill people efficiently. But I’m far more outraged by the idea that anyone anywhere seriously thinks the death penalty passes for good politics or sane policy. It’s expensive, ineffective, and most of all, deeply offensive to ideals of truly limited government.

Monday, 28 July 2014

Alex Kozinski, a federal judge on the Court of Appeals for the Ninth Circuit, has gone on the record saying he is “generally not opposed to the death penalty.” But his opinion in a recent case may nevertheless find itself in the history books one day — in the section explaining why the death penalty in America finally ended.

Four men -- Michael Wilson, McGuire, Clayton Lockett and Wood -- have been subjected to bungled executions this year. Although the drugs, doses and other details of the procedures differed in each execution, the commonality between them is that the departments of corrections used experimental drug combinations and shielded crucial aspects of their practices in secrecy.

Even in the aftermath of the executions, the lack of transparency continues. While governors in both Oklahoma and Arizona have called for reviews of the problematic executions, no outside authorities have been brought in to conduct the investigations.Internal investigations are insufficient to the task. Departments of corrections cannot be allowed to provide pat explanations that leave central questions unanswered, minimize errors and hide relevant information about what went wrong.

The Eighth Amendment to the Constitution prohibits punishments deemed to be cruel and unusual, a standard to which capital punishment does not rise, at least according to the U.S. Supreme Court. But with yet another botched execution, the third over the past six months, the cruelty is becoming pretty usual.

It was disturbing enough that the state of Arizona last week took nearly two hours to execute convicted double-murderer Joseph Rudolph Wood, during most of which time he appeared to witnesses to be gasping for breath and grunting in pain. To me, however, equally disturbing is how many people rejoiced over the poor excuse for justice.

The details matter. In Ohio, Dennis McGuire was seen writhing and gasping as his execution took place, after a doctor warned that the planned dosage of midazolam would not be sufficient to render McGuire unconscious to the point where he would not suffer from the ensuing injections. McGuire reacted pretty much the way the doctor warned he would, struggling to breathe from "air hunger." Still, Arizona decided to use that very same protocol this week in executing Joseph Wood. We know how that went, nearly two hours in all, including hundreds of gasps for breath, as reported by journalist witnesses.

But for now, Arizona faces the consequences of a culture of secrecy that has enveloped its political leadership. Leading up to the botched execution of Joseph Wood, the state refused to provide information about the origin and safety of the drugs to be used and also refused to provide information concerning the training and skill of the personnel involved in carrying out the execution.

The death penalty is an affront to all we hold dear as conservatives and libertarians. It is a disastrous policy that fails at its goal of preventing crimes, it wastes taxpayers' hard-earned money, it has almost certainly been responsible for killing innocent Americans and it empowers government with the authority to kill its own citizens.

Death row defendants may offer other options like the firing squad as a solution to lethal injections’ ills. However, no alternative can shorten the drawn-out appeals process that inevitably arises in each death row case. Be it by lethal injection, firing square, or a hangman’s noose, the death penalty will leave victims’ families waiting years for closure. The more humane solution to relieve suffering, save tax dollars, and keep the state’s monopoly of violence in check is to sentence convicted killers to life in prison, where they will spend the rest of their existence living with the agony of their crime. Isn’t that punishment enough?

The botched execution this week in Arizona of a convicted murderer who spent nearly two hours gasping for air as he died is just one more reason to question the whole enterprise of capital punishment. It is morally untenable.

The Wood case is just another example of why the problems inherent in the death penalty far outweigh its supposed benefits. There is no evidence, for example, that it serves as any sort of deterrence. Most people who commit murder either don't intend to get caught or they don't care if they're caught. Many are not bright enough or undamaged enough to think through consequences. Their future horizon is measured in minutes, not days or months or years.

"I wondered if there were a Plan B, some other dose of drugs, something to speed up the death. Or someone to stop it" -- Arizona Republic reporter Michael Kiefer, who witnessed yesterday's two-hour execution.

You wonder what else can go wrong. What other ways will states find to make a mess of killing someone? When will North Carolina get back in the game and take its own shot at execution notoriety with Ohio, Oklahoma and now Arizona?

Lethal injection is not modern medicine. Executioners do not have proper training, leading to some prisoners being conscious but paralyzed as they slowly asphyxiate. States are fumbling to find drugs, concocting different combinations every time. In the case of Mr. Wood's execution, the state used a two-drug combination that had been used only once before, when the state of Ohio took 25 minutes to kill Dennis McGuire.

And these killing experiments are being carried out in secrecy. The hours before Mr. Woods was strapped to the gurney were a frenzied attempt to figure out where the drugs came from before they could be shot into his vein. We still don't know.

The greater problem underlying the horrific executions we have recently seen is not lethal injection or a matter of simply getting the drugs right. The execution of the innocent, the shameful role of race, mentally ill defendants, poor defense lawyering, and prosecutors who hide the truth -- these are the problems that make the death penalty completely inappropriate in the modern world. Yet we continue to slowly pick off killing methods that are simply too barbaric to condone, but the truth is that there is no way for states -- for our government -- to kill someone that is in line with the type of country we want to be.

On Wednesday afternoon, in a ritual that has become increasingly—indeed almost numbingly—familiar, the state of Arizona administered a secret drug protocol that took almost two hours to kill a man. Joseph R. Wood III was sentenced to death in 1991 for shooting and killing his ex-girlfriend Debra Dietz and her father, Eugene. The murder was gruesome, and Wood was guilty. He shot his victims in the chest at close range. The only question that remains, as yet another state botches yet another execution, is whether the two hours of gasping and snorting by the accused before he finally died is excessive, or whether it sounds about right to us.

Thursday, 24 July 2014

By the time dusk came to the desert, the Arizona attorney general had issued a triumphant press release so negligently drafted that at first it included the name Robert Jones, a death row inmate Arizona executed last October. The Arizona governor had also declared success, dutifully promised an investigation, and yet at the same time mocked claims that Wood had suffered during the course of the long procedure. And the Arizona Supreme Court, which had permitted the execution to proceed earlier in the day, and which was holding a hearing to stop the botched execution at the very moment it learned that Wood at last was dead, demanded that the state preserve the drugs used to finish him off.

The heart of this story is the dead man, the way he died, and the way his grisly death was so predictable given what we all know about the sorry state of lethal injections in America today. Arizona didn't just experiment on Wood. It experimented on him without ever subjecting its planned experiment to any sort of independent review. The state combined midazolam with hydromorphone and topped it off with a series of unsupported, unjustified, untested assurances that all would be okay — this from the very officials who couldn't get Wood's name right when at last they were able to announce that they had successfully executed him.

We thus see in this botched execution the meshing together of two themes — one purely American, the other surely un-American.

In Arizona last night, state officials strapped Joseph Wood, a double murderer, to a hospital gurney and imposed the death penalty. The sentence was carried out through lethal injection, and was botched so badly that it took Wood almost two hours to die. In much of the time, witnesses say, he was gasping and fighting for breath.

For all but the most blood-thirsty, I think, that would qualify as cruel and unusual punishment. Yes, Wood had brought it on himself when he walked into an Arizona body shop and killed his ex-girlfriend and her father. But we are supposed to better than he was. That's kind of the whole point of sitting in judgment and imposing punishment.

The Wood case is just another example of why the problems inherent in the death penalty far outweigh its supposed benefits.

Arizona authorities used hydromorphone, a chemical relative of morphine and heroin that relieves pain but also can kill at higher doses by suppressing the breathing control center of the brain.

The problem, as in Arizona and an earlier 40-minute execution in Ohio, is that the prisoner may exhibit a response to oxygen starvation, sometimes called “air hunger,” and try to breathe. From the textbook, Miller’s Anesthesia,

“High doses of opioids usually eliminate spontaneous respirations without necessarily producing unconsciousness. Patients receiving high doses of opioids may still be responsive to verbal command and often breathe when directed to do so.”

While I’m not privy to the doses – and if more was given during those two hours or how quickly Woods metabolized both drugs – it’s safe to say that a combination of midazolam and hydromorphone caused exactly the scenario described yesterday.

Now there’s Wood in Arizona. Arizona chose to become just the second state to use the same two drugs that Ohio used for McGuire, despite the apparent problems with that execution. A full picture of Wood's death has not yet emerged, but the execution dragged on so long that Wood’s lawyers were able to file an appeal in U.S. district court during the procedure. The Arizona Department of Corrections insists nothing went wrong with Wood’s execution. Given the properties of the drugs that were used, it’s less likely that Wood suffered pain than Wilson or Lockett, both of whom were given a paralyzing drug. But lethal injections are supposed to be quick procedures, lasting no more than 10 or 15 minutes. If you start counting from when the drugs began to flow (as opposed to when the executioners first attempt to establish IV access), then Wood’s execution may have been the slowest in U.S. history.

The increasingly irrational argument for attempting to humanely put a convict to death has run out the string in Arizona.

It is not humane to leave a human being, however deserving of death, to gasp for air for two hours before dying, as double-murderer Joseph Rudolph Wood did on Wednesday.

A firing squad armed with high-velocity rifles loaded with hollow-point ammunition would be more humane.

That is precisely what U.S. Ninth Circuit Court of Appeals Chief Judge Alex Kozinski argued in his dissent of an order to stay Wood's execution. The U.S. Supreme Court later overturned the ruling.

And:

Arizona must place a moratorium on any further use of the mysterious chemicals used for executions. Gov. Jan Brewer cannot permit another execution to go forward without solid assurance the death sentence will be carried out within the constraints of the Eighth Amendment — an assurance that Wood's botched execution rationally tells us is a fool's errand.

By trying to pretend we are putting these convicts quietly to "sleep," we have instead fallen into a protocol that assures a lingering horror. If that is not the definition phrase "cruel and unusual punishment," the words have lost all meaning.

Wednesday, 23 July 2014

These killings committed in our names are not pretty. This is brutality, pure and simple, and a brutality that serves no public interest, coming too long after the crime to serve as either punishment or deterrent. And the solution is not to speed up the process. As it is, a conservative estimate suggests an error rate of 4% in sentencing the innocent to death.

Recent polls have shown an erosion of public support for capital punishment, with one recording a slight majority of Americans now opposing it. Could it be that we’re slowly becoming a civilized nation? Could we be nearing the point at which we recognize the moral and ethical failure at the heart of giving our government the power to kill fellow citizens?

In their motions for a stay of execution, Wood's attorneys cited a long history of transparency about executions, from the display of ropes used in hangings to information about the gas chamber that still sits across the viewing room from the lethal-injection chamber in the death house at the Florence prison.

In recent years, the federal defender's office has been battling the state over secrecy.

"The people of Arizona have decided that the death penalty is an appropriate punishment," said Dale Baich, a federal public defender. "They should equally decide that the death penalty cannot remain shrouded in secrecy that prevents ... the public, the courts and the condemned from knowing if executions are carried out in compliance with all state and federal laws," Baich said.

The argument will continue in U.S. District Court in an ongoing lawsuit.

But the decision by U.S. District Judge Cormac J. Carney last week is less a victory for abolitionists than it is a condemnation of California officials’ mishandling of capital punishment.

And:

There always will be terrible crimes. But for an array of reasons, not the least of which is public ambivalence, California has failed to carry out death sentences. Policymakers and the citizenry ought to acknowledge that the death penalty is broken beyond repair.

"Justice delayed," is the title of the Economist's current Democracy in America column.

“A MAN is undone by waiting for capital punishment,” Albert Camus wrote, “well before he dies.” On July 16th a federal judge in California, Cormac Carney, ruled in Jones v Chappell that the machinery of death in the Golden State is so plagued by delays and arbitrariness that it amounts to a “cruel and unusual punishment” in violation of the Eighth Amendment to the federal constitution. Judge Carney struck down Ernest Jones’s 1995 death sentence for raping and killing his girlfriend’s mother, along with the capital sentences of 747 other convicts. Awaiting execution for decades “with complete uncertainty as to when, or even whether, it will ever come,” Judge Carney wrote, is a punishment “no rational jury or legislature could ever impose.”

And:

Stephen Bright of the Southern Centre for Human Rights says that the California death penalty is “uniquely dysfunctional” (a term Judge Carney used eight times) and “will collapse of its own weight eventually.” If and when the challenge reaches the Supreme Court, it is unclear how it will fare. Justice Stephen Breyer has been receptive to the delay argument in the past and this March Justice Anthony Kennedy asked the Florida solicitor general whether he thought waiting 35 years to die was "consistent with the purposes that the death penalty is designed to serve." Mr Bright has few doubts which way the wind is blowing. Judge Carney’s decision, he says, “has added to the conversation in a way that will lead to the inevitable end of the death penalty in California and the United States.”

Repercussions from last week's federal ruling calling California's death penalty unconstitutional are already being felt in Kern County.

The attorney representing Aaron Patrick Burris, charged with two counts of murder stemming from a shooting at a medical marijuana dispensary last summer, has filed a motion to strike the death penalty as potential punishment in Burris' case.

The motion, filed by Deputy Public Defender Paul Cadman on July 17, states, "The defendant seeks a fair and impartial trial, untainted by the moral repugnancy of the California penalty scheme, which ignores the clear reading and mandates of the 8th Amendment."

Monday, 21 July 2014

In a remarkable ruling overturning the death sentence of Ernest Dewayne Jones, who was sentenced in 1995 for the murder of his girlfriend’s mother, Judge Carney, an appointee of President George W. Bush, pointed out that of the more than 900 people California has sentenced to death since 1978, 13 have been executed. More than 40 percent of the rest have been on death row for at least 19 years, and the backlog is growing.

The judge found that the delays are primarily due not to inmates’ repeated appeals, as is often assumed, but to the state’s own foot-dragging and underfunding of its indigent defense system.

California law provides for an automatic appeal of all death sentences, but it takes three to five years before death-row inmates — all of whom are indigent — are even assigned a lawyer. It takes four more years for the lawyer to go through the voluminous trial record and file an appeal, and two to three years for the State Supreme Court, which hears only 20 to 25 death-penalty appeals per year, to schedule oral arguments.

This page has long argued for the abolition of the death penalty because it is barbaric, inconsistently applied and fallible in its implementation. Another judge has already found California's lethal injection process unconstitutional; the state Department of Corrections and Rehabilitation is crafting a new protocol.

The truth is that the constitutional issues surrounding executions have proved too thorny for political or legal resolution, and so the condemned sit for decades in limbo.

Some might see that as an argument to speed up the process. But the risk of executing the innocent is too high under a speedy system. This ruling, which undoubtedly faces its own protracted journey through the courts, firms up the case for doing away with the death penalty altogether.

Carney's ruling is expected to be appealed. But in the words of Bob Dylan, "the times they are a-changin'!" Carney's ruling raises an additional question: How strong is the public mood to maintain a system that beyond appealing to the primordial thirst for revenge has been ineffective by every measure it set?

Carney's decision could create a ripple effect for similar arguments to be made in death penalty appeals nationwide. Hopefully, California and the rest of the nation will reach the age of enlightenment by joining the fraternity of countries like Angola, Mozambique, and Rwanda that see the death penalty for what it is -- an abject failure.

Anxiety shook me when my fifth-grade teacher assigned us a paragraph on what we thought about Stanley “Tookie” William’s death sentence. Williams, a former leader of the Crips charged with several accounts of first-degree murder, was put on death row in California. In prison, he began writing anti-gang and anti-violence books for children, some of which we had read in class.

Williams became an icon for many activists and leaders, with more than 2,000 attending his funeral. Before his execution, he left behind a recorded message for his mourners. “The war within me is over. I battled my demons and was triumphant,” Williams said in his recording. “Teach them how to avoid our destructive footsteps. Teach them to strive for higher education. Teach them to promote peace and teach them to focus on rebuilding the neighborhoods that you, others and I helped destroy.”

As a fledgling 10-year-old citizen, I had vague intuitions about the dilemma of justice presented before me. Part of me questioned whether it was morally just to penalize murder by executing murder under the thin veil of a bureaucratic procedure. As a young adult, I am more cognizant of the rhetorical moves supporters and opposers of this legal process use, which I explore here.

A - all bow - federal judge has ruled that California's death penalty is unconstitutional because the state's "dysfunctional administration" has meted out the punishment to more than 900 murderers, but imposed it on "only 13" since 1972. That's too arbitrary, wrote U.S. District Judge Cormac J. Carney of Santa Ana. Besides, "the slight possibility of death, almost a generation after (killer Ernest Dewayne Jones) was first sentenced, violates the Eighth Amendment's prohibition against cruel and unusual punishment."

And: a "death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death."

It doesn't bother Carney that Death Row inmates' lawyers have created that preposterous sentence - remote possibility of death - by slowing the wheels of justice with dubious time-sucking appeals. If appellate attorneys think delays are too painful for their clients, maybe they should curb their appeals.

Friday, 18 July 2014

"It doesn’t totally surprise me that every few years a judge will speak honestly about what's going on," said death penalty litigator Bryan Stevenson of the Equal Justice Initiative. "Although some people would disagree with his legal conclusion, most people don’t disagree with his analysis of how things are functioning."

Carney's decision differed from rulings by other state and federal judges who have identified various problems with death sentences, said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty.

"The judge here has pulled together all of the ways the system is dysfunctional," she said. "He is not challenging the policy per se; he is saying that in practice, this isn't working in a constitutional way. His analysis is applicable to the rest of the country. It has implications certainly for the Supreme Court, but also for policy analysis."

A popular argument among the pro-death penalty crowd is that condemned murderers delay justice for years with "Hail Mary" appeals in desperate attempts to evade execution. But what Wednesday’s court decision by federal judge Cormac J. Carney makes clear is that, at least in California, the delays aren’t caused by those trying to stave off execution. They are caused primarily by the state itself. And seeing how many condemned prisoners eventually win reprieves from federal judges, those delays are a good thing.

The ruling by Carney, who found California's administration of the death penalty to be unconstitutional, is here, and you should read it. It’s succinct, with a minimum of the kind of dense legal language that can make some decisions read like they were written in code.

The decision about whether to file that appeal and possibly a subsequent appeal to the US Supreme Court falls to Attorney General Kamala Harris, who has maintained her opposition to capital punishment since her days as San Francisco’s district attorney, where she bravely endured lots of political heat for refusing to file capital murder charges in the death of San Francisco Police Officer Isaac Espinoza.

San Francisco Public Defender Jeff Adachi today issued a public statement praising yesterday’s ruling and calling for Harris not to appeal it: “Today’s ruling, which found California’s death penalty unconstitutional, is a monumental victory for justice. I commend U.S. District Judge Cormac Carney for his courage and wisdom. Not only is the death penalty arbitrarily imposed, as the judge noted, its history is fraught with racial bias and haunted by the hundreds of death row inmates who were later exonerated. I am hopeful that California Attorney General Kamala Harris will choose not to appeal this decision.”

Harris spokesperson David Beltran told the Guardian that she hasn’t yet made a decision whether to appeal the case: “We are reviewing the ruling.”

Judge Carney’s ruling calls into question a delicate political equilibrium that allows the public both to demand that their lawmakers pledge fealty to the death penalty when running for election, while not actually having to stomach the enormous number of executions that a systematic program of capital punishment would entail. The result is that death penalty statutes remain on the books in most states as death row continues to expand, yet relatively few are actually executed.

Some numbers put all this in perspective. The F.B.I. reports there were 14,827 cases of homicide or non-negligent manslaughter in 2012, of which 11,298 occurred in jurisdictions that have the death penalty. Research indicates that around one-fifth to a quarter of these homicides were for capital-eligible crimes, suggesting there were around 2,500 capital-eligible homicides in 2012, which is both high by global standards and much lower than in previous decades.

Yet there were only 45 executions last year. When fewer than one in 50 capital-eligible homicides leads to the death chamber, it is clear that capital punishment is rare.

A federal trial judge in California has handed down an opinion, Jones v. Chappell, striking down California’s death penalty. I found the opinion unusually weak, and I thought I would explain why.

Let’s start with the judge’s argument. According to Judge Carney, California’s “death row” is really not death row at all. Once a person is sentenced to death in California, he then spends on average over 25 years fighting his conviction in state and federal court. The direct appeal following conviction usually takes more than a decade; the state habeas process usually takes around 5 years; and the federal habeas process usually takes more than a decade. The state and federal courts usually find ways to invalidate the sentences. But even when the courts don’t ultimately overturn the capital sentence, the execution can’t come until the legal arguments are resolved. Because that process takes around a quarter century or more, being on death row in California is pretty much the same as getting life in prison without the possibility of parole. Indeed, for every one person actually executed, around seven have died of natural causes. Of the 900 individuals that have been sentenced to death in California since 1978, only 13 have been executed. And California has not executed anyone since 2006.

But could it reach farther? California Attorney General Kamala D. Harris is likely to appeal the case to the Ninth Circuit, where if upheld, it could head to the Supreme Court. Santa Clara law professor Gerald Uelman told the Los Angeles Times, “It is conceivable that the U.S. Supreme Court and the 9th Circuit could say California is such an outlier — its system is so dysfunctional, with twice the national delay — that it cannot be sustained.”

What does this mean for the 748 individuals currently on Death Row? It’s unclear. This decision applies only to the matter at hand, the death sentence of Petitioner Jones. According to press reports, the Attorney General is considering the matter and has not indicated whether she will appeal the ruling. Defendants and Petitioners will certainly cite the holding in their arguments, but other state and federal courts are not bound to follow it.

California, however, seems to be on the precipice of change when it comes to the death penalty. Public opinion has changed dramatically over the past couple of years, both in the state and across the nation. In 2012, a proposition that would have replaced the death penalty with life in prison without parole garnered 48% of the vote. Revelations about the high cost ($4 billion since 1978, and a projected $1 billion over the next five years), structural problems in the system, and the risk of executing an innocent person are leading many citizens away from the death penalty. Stories about botched executions horrify the nation, and many states—including California—are actually enjoined from carrying out executions until new protocols have been adopted. A recent poll shows that 63% of California voters support commutation of the sentences of the entire population of death row to life in prison without the possibility of parole. In 2013, Gallup found that support for the death penalty, nationwide, is at its lowest number in over 40 years.

Judge Carney’s opinion is in line with the direction of public opinion, whether he intended it or not. Regardless of whether his reasoning is upheld on appeal or in subsequent litigation, it could very well signal the imminent demise of the practice in the state.

The most recent Gallup Poll on the death penalty has support at about 60 percent, down from a high in 1994 of 80 percent. That’s not to say that 60 percent is not a significant number or that 32 of 50 states with the death penalty is not a substantial majority. But, unequivocally the death penalty is trending downward.

Thursday, 17 July 2014

U.S. District Judge Cormac J. Carney isn't the first federal judge in recent memory to declare the death penalty unconstitutional. And he surely won't be the last.

Still, Carney's ruling Wednesday vacating the death sentence of a California man named Ernest Dwayne Jones is as candid a judicial lament on the sorry state of capital punishment (in the state and in the nation) as you are ever likely to read.

If California can't or won't do the death penalty right, Judge Carney declared, it should not be allowed to do it at all. But his working theory isn't that the state's capital system is prone to error, or rife with racial disparity, or arbitrary in its application, even though it is plaintively all of those things. Instead, this appointee of George W. Bush concluded that the "machinery of death" grinds too slowly in California for it to sustain itself under the Eighth Amendment. Delay, he contends, is the decisive constitutional flaw in the grim mechanism.

Tuesday, 15 July 2014

In January 1992, the last time the state of Wyoming executed a man, I was at the Capitol Building in Cheyenne before the scheduled midnight lethal injection in Rawlins, interviewing people who opposed killing Mark Hopkinson.

I agreed with them. As a newspaper editorial writer at the time for The Wyoming Eagle, I had implored Gov. Mike Sullivan to commute the sentence to life imprisonment. So did many others, including Amnesty International. I saw the light still on in the governor’s office, and though we all knew he wasn’t going to stop Hopkinson’s imminent demise, he was at work, doing his duty, just in case something happened to stall things.

Snow was falling lightly, and there was only a small band of protesters. Even if the weather had been nicer, I doubt it would have attracted much more of a crowd. Few people in Wyoming were sympathetic toward Hopkinson, an Evanston businessman who had ordered the murders of an attorney and his family as well as a former associate, Jeffrey Green, who turned him in to authorities. Most residents believed he was getting what he deserved. I understand that feeling.

It isn’t necessarily the person being executed that makes me oppose capital punishment; I just don’t feel the state has the right to take a life in the name of its citizens. Killing Hopkinson wasn’t going to bring back his victims. Given that more than 140 nations feel the same way and have abolished the death penalty, I’m in agreement with the vast majority of people in the world.

Tuesday, 08 July 2014

3. Let's choose a better execution method.Lethal injection -- which grabs headlines these days -- never was and never will be a good execution method.

The execution scene I witnessed resembled final goodbyes at a hospital or hospice for the terminally ill. The dying person lies on a gurney, wrapped in white sheets, an IV attached, surrounded by medical technicians with loved ones in attendance. We should oppose lethal injection, not because it might cause pain, but because it certainly causes confusion, wantonly merging punishment and treatment.

The firing squad seems to me the best of traditional methods, but a state might give a member of the victim's family a choice among available constitutional options.

Two of the greatest writers of the19th century, Charles Dickens and Leo Tolstoy, passionately opposed the death penalty. Both were also Christians, and they understood perfectly well that the Sermon on the Mount makes it clear that, under the old dispensation, an eye for an eye was appropriate. But Jesus said bluntly that not only should we never kill anyone, but we must turn the other cheek, resisting evil in a nonviolent way. This wasn't something Jesus imagined was up for grabs.

Dickens, the Shakespeare of the novel, argued against capital punishment on many grounds, but he was especially concerned about the matter of determining guilt in such an absolute way. Can we ever really know for sure that someone did something? The death sentence is inevitably delivered by "men of fallible judgment, whose powers of arriving at the truth are limited, and in whom there is the capacity of a mistake or false judgment."

Tolstoy wrote a stirring essay in 1908 called "I Cannot Be Silent" in which he described a multiple hanging, and found it repulsive on every level. He noted the priest who attended the execution and how he mumbled something about God and Christ to the condemned.

Ethics and Religion Talk is compiled and written by David Krishef, rabbi at Congregation Ahavas Israel in Grand Rapids. Krishef takes questions from readers and shares them with a panel of clergy, then provides the responses in collaboration with community engagement specialist Zane McMillin.

Monday, 07 July 2014

A great deal has been written about the shortcomings of the American criminal justice system, but perhaps nothing more searing than Morton’s book, “Getting Life.” It is a devastating and infuriating book, more astonishing than any legal thriller by John Grisham, a window into a broken criminal justice system.

And:

Finally, it’s worth noting that Michael Morton is able to deliver this aching and poignant look at the criminal justice system only because he didn’t get a death sentence. When Morton was finally freed from prison, some of his first words were: “Thank God this wasn’t a capital case.”

On one of the 25 Christmases he spent in prison, Michael Morton received the best gift of his life — a cheap, all-plastic typewriter, with nothing even the most inventive inmate could fashion into a weapon.

He pounded on the rickety machine for hours, crafting fiction, writing legal documents and tapping out a 1,000-page prison journal. The memoir Morton fashioned in his cell — “Getting Life: An Innocent Man's 25-Year Journey From Prison to Peace,” out Tuesday — is a jarring testament that truth really can be stranger than fiction.

After serving two-and-a-half decades behind bars for the 1986 murder of his wife — a crime he did not commit — Morton has been the subject of a documentary, several media profiles and hours of TV talk-time. His story — a Texas story, out of Williamson County, north of Austin — attracted national attention.

With “Getting Life,” Morton takes his horrifying experience into his own hands, something he said carried none of the anxiousness he has felt in the past when he was interviewed.

As the Supreme Court ends its October Term 2013 and heads off for summer recess, it is worth taking a closer look at one of the sleeper cases of the term, Hall v. Florida, a case about intellectual disability and the death penalty. Though Hall received only moderate attention in the press and was depicted as having limited practical reach, it contains significant new avenues for those who oppose the death penalty. The opinion, written by Justice Anthony Kennedy, contains small but important analytical shifts that, considering Kennedy’s role not only as the Court’s swing justice but also as the Court’s most vocal interpreter of the Eighth Amendment, could ultimately make it far easier for death penalty opponents to abolish the death penalty entirely.

On the surface at least, Hall strikes little new ground. It mostly clarifies the Supreme Court’s 2002 decision, Atkins v. Virginia, in which the Court ruled that the Constitution forbids the execution of the “mentally retarded” – people we now refer to as “intellectually disabled.” Atkins had largely left it to the states to determine which defendants fall into this category and therefore are exempt from the death penalty. Hall tells certain wayward states like Florida that in order to comply with Atkins, they must determine which defendants are intellectually disabled in a robust, less rigid way and in a manner that is consistent with medicine and science.

Thursday, 26 June 2014

Which is one of the other issues: This is an abject failure of the Texas legal system (again), and as the Dallas Morning News recently said, is “a case to rattle anyone's confidence.” So much time has passed, though, that there likely isn’t anyone left to be held accountable — prosecutors or defense lawyers — for letting the case slide.

So why was Hartfield allowed to languish? A mix of reasons. Without the death penalty hanging over his head, his lawyers sat back to wait for the state to push for a new trial. But that never came, and as time passed, the case fell through the cracks.

And why didn’t Hartfield insist he be released? Because, with an IQ in the low 50s, he didn’t understand what was happening. The dropped case didn’t come to light until 2006, when a fellow inmate pointed out to Hartfield that he shouldn’t be in prison because he was not convicted of a crime. New lawyers for Hartfield filed papers seeking his release, which a judge rejected, and set the retrial date for September.

Thursday, 12 June 2014

"Undecided," is the title of her latest OpEd column in today's New York Times. Here's the beginning:

With the end of the Supreme Court’s term in view, the focus is naturally on the cases to be decided. So it’s worth pausing, before the final onslaught, over a case the court won’t be deciding, one that the justices turned away earlier this week although it cried out for their attention, and ours.

The question was whether a Pennsylvania prison inmate serving a mandatory life sentence without the possibility of parole for a murder committed in 1999 when he was 17 could get the benefit of a 2012 Supreme Court decision that found such sentences to be unconstitutional. The court’s ruling in Miller v. Alabama held that for offenders who committed murder before the age of 18, a sentence of life without parole could be imposed only after individualized consideration of the defendant’s age and circumstances.

In other words, the sentence is permissible at the end of the day, but it can’t be automatic, as it was at the time in more than half the states as an alternative to the death penalty, which a 2005 Supreme Court decision precluded for juvenile murderers. Pennsylvania has some 500 inmates, fully a quarter of the national total, currently serving no-parole life sentences for murder they committed as juveniles.

Thursday, 05 June 2014

Several commenters took exception to a line in a Taking Note post last week about Ohio’s moratorium on executions, which followed a series of botched attempts there and elsewhere to kill inmates using lethal injection.

The post argued that “there’s no clean way to kill someone: either it’s quick and bloody, which has been deemed too ‘barbaric,’ or it involves cooked skin, accidental decapitation, gasping, snorting, choking and the like.”

It’s no secret that Texas believes deeply in its right to kill, having done so more than any other state and already 7 times this year. It’s also no secret Texas thinks this actually works; as in, killing people gets you what you want, teaches people how wrong they are, and is a clear form of communication.

Which is exactly what most killers think: killing works. Elliot Rodger in southern California, Army Specialist Ivan Lopez at Fort Hood, Dzhokhar Tsarnaev in Boston, Adam Lanza in Newtown and the state of Texas all operate out of the same twisted and false narrative: that killing works: it gets you want you want, teaches people they are wrong, and is a clear form of communication.

What is a secret though, is where the drugs for our executions are made. Attorney General Greg Abbott has recently decided that Texas can keep our drug source secret, despite worries from those on death row, a botched execution in Oklahoma (that used different drugs), and the fact that the compounding pharmacy which makes the drug is not regulated.

The public debate today in the wake of the Lockett case, should not be about trying to find an alternative method to execute criminals. It instead should be about eliminating the death penalty. There is no humane way to commit the ultimate cruelest act between humans, namely, the killing of a human in the name of the government by another human. This is government sanctioned homicide.

Additionally, the evidence is now clear that capital punishment does not deter crime. The death penalty is nothing more than punishment and keeping the public safe by permanently removing murderers from the streets. A better way to accomplish these objectives is Massachusetts’ sentence of life imprisonment without parole.

While Hall addressed (and fixed) one departure from the definition of intellectual disability, other states have created other equally if not more severe impediments to intellectually disabled death sentenced inmates seeking Atkins’ exemption from capital punishment. One such state, not surprisingly, is Texas, whose Court of Criminal Appeals in Ex Parte Briseno created from whole cloth a list of factors for courts to consider in deciding whether an inmate met the second prong of the test for intellectual disability (“deficits in adaptive functioning”). These “factors”–junk science at best–are not only fundamentally at odds with the “unanimous professional consensus,” but were, by the state court’s own admission, created to limit the reach of Atkins to those whom Texans would believe had sufficiently diminished moral capacity to be exempt from the death penalty. The court’s maneuver worked and the “Briseno factors” have made intellectual disability claims almost impossible to win in the Lone Star State.

Going forward, the question will be whether the Court meant what it said in Hall. Was Hall a one-off, or will state and federal courts, including the Supreme Court, hold states to the clinical definition of intellectual disability which–in the Court’s own words–was and ostensibly remain a “fundamental premise of Atkins.” Hall is a significant step in the right direction, but there are more steps to take before the risk of executing persons with intellectual disability is dissipated, and our commitment to dignity and human decency is fulfilled.

In Hall v. Florida, the Supreme Court ruled that using a score on an IQ test as the sole measure of intellectual disability is unconstitutional. Justice Anthony Kennedy wrote for the court, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Justice Kennedy explained that established medical practice would look at multiple factors in determining intellectual disability and would not put so much emphasis on an imprecise test. He explained that “the reality [is] that an individual’s intellectual functioning cannot be reduced to a single numerical score.” He said that Florida seeks to execute Hall because his IQ is 71, rather than 70, and the Constitution does not permit that.

The U.S. Supreme Court is often divided, but on one little-noticed point last week, it was unanimous: the term "mental retardation" is no longer appropriate to use. This may seem trivial and way too late. Mental health professionals and most of the rest of us long ago abandoned that phrase, which echoes insulting schoolyard epithets.

But at an institution whose decisions have broad impact, the court's action is a significant sign of society's progress toward treating each other with dignity.

The court's shift came Tuesday in Hall v. Florida, which struck down Florida's method for determining whether a death row inmate who claims intellectual disability should be executed. On that issue, the court split 5-4.

But on the second page of the majority opinion, Justice Anthony Kennedy laid down the law on terminology: "Previous opinions of this court have employed the term 'mental retardation.' This opinion uses the term 'intellectual disability' to describe the identical phenomenon." Justice Samuel Alito Jr. adopted the same term in his dissent. As recently as 2013, the court routinely used "mental retardation" in its opinions.

Advocacy groups such as the American Association on Intellectual and Developmental Disabilities and The Arc — both of which once had "retardation" or "retarded" in their names — applauded the shift. In addition to the symbolic importance, they said they can now use "intellectual disability" in legal briefs. Until last week's decision, they used the outdated terminology to track the wording of precedents and avoid confusion.

It wasn’t just the decision that advocates lauded, it was Kennedy's shunning of archaic terminology.

"Previous opinions of this Court have employed the term 'mental retardation,'" he wrote. "This opinion uses the term 'intellectual disability' to describe the identical phenomenon."

For those fighting for the rights of people with intellectual disabilities, such a shift in language marks monumental progress that can be so easily achieved.

"Using more neutral terminology to describe a person with [intellectual disabilities], when they need to be described at all, is just one more way to respect them," wrote blogger Ellen Seidman who chronicles life raising a child with special needs. "Not the only way, of course, just one. An easy one."

Advocates continue to raise awareness about the hurt that is involved with using the word "retarded" in the hopes of encouraging people to stop using the word pejoratively and to cease using it in medical, legal and educational settings.

With the Court's ruling and revision of language, I'm adding a new Intellectual Disability category index that will be used moving forward. Pre-Hall posts on the topic will remain in the now-retired mental retardation category index.

Wednesday, 04 June 2014

The death penalty has fallen on hard times. The international community has largely rejected and abolished its use. No other Western democracy besides the United States resorts to the death penalty, and it is widely considered barbaric in Europe. Only a handful of outlier nations cling to this nasty old practice. Not great when you are in the company of Saudi Arabia, Iran, China and North Korea.

Making things even worse, executions of late have not gone smoothly. I thought we were past the days of flames shooting out of people’s heads. However, we just had the spectacle of the state of Oklahoma botching the lethal injection execution of Clayton Lockett.

Lockett was alive quite a while after the time the state had expected he would be dead. Witnesses reported that he twitched and writhed in pain. He tried to lift himself off the gurney to which he was strapped. This went on until Oklahoma state officials drew the shades so observers could not see more. Later the state officials called off Lockett’s execution, but it turned out he was already dead from heart failure.

Not that Indiana is listening, yet. Which is surprising. Because if there’s one thing the General Assembly and the governor’s office can get behind, it’s catering to the call of a corporate complaint.

But as a New Jersey company flinches over its drug being held up as a makeshift substitute in this state’s death row executions, Indiana has reached another time for when the General Assembly and Gov. Mike Pence need to ask: Is the death penalty really worth it?

As if a business begging, “Please, don’t use our product that way,” isn’t enough, consider the price in every other way — ethically, judicially and in dollars and cents. Capital punishment keeps getting harder to buy as ultimate justice. And not just because companies don’t want their products used to put down another killer.

Thursday, 29 May 2014

Since Haslam signed the electrocution measure earlier this month, he and Cooper have sought to assure Tennesseans that they are on solid ground with the electric chair. And it’s true that the U.S. Supreme Court and appellate courts have not expressly struck down electrocutions as violating the Eighth Amendment.

Still, new death penalty challenges are being brought continually throughout the country. Florida had problems with electrocutions that did not go as planned. Highly publicized botched lethal injection executions have taken place in Oklahoma, Ohio and Georgia over the past several months. And then there are the revelations, occurring regularly, of men and women on death row found to be erroneously condemned. Of those, some have been exonerated through DNA evidence, others were found to have been framed and still others simply had incompetent legal representation.

Amid all of these problems with the justice system, it is disappointing that Gov. Haslam and the General Assembly have not learned that the death penalty solves nothing.

That brings us back to the electric chair. Like Tennessee, Alabama still has one, although it hasn’t been used since 2002. Unlike his counterpart just to the north, Gov. Robert Bentley said he is against putting it back into regular service. Perhaps he has good reason, and a good memory.

Alabama’s electric chair, nicknamed “Yellow Mama,” has its own gruesome past. In 1983, John Louis Evans III became the first person executed in Alabama following the U.S. Supreme Court’s reinstatement of the death penalty in 1976. The first jolt set off sparks and nearly caught his leg on fire, but it didn’t kill him. It took two more jolts and 14 minutes for doctors to finally pronounce Evans dead.

Capital punishment isn’t pretty, but as its supporters say, neither are the crimes that merit it.

Still, that hasn’t stopped most of the world from abolishing the death penalty, suspending it or limiting its use to punishment for wartime atrocities. When it comes to capital punishment, the United States is in the company of China, Saudi Arabia and Syria.

The latest wave of responses from death penalty states is to revert, or at least threaten to revert, to killing methods that had been discarded as overly brutal. Tennessee last week officially made electrocution an option once more. Wyoming and Utah are poised to bring back firing squads.

These moves may be posturing of a sort: Quit challenging lethal injection, or we’ll switch to something you find even more abhorrent.

Both sides of the capital punishment debate are well dug in. Death-penalty states won’t abandon the practice simply because their preferred execution method is squeezed; it’s equally unlikely that opponents of executions will drop their objections lest more barbaric methods be employed.

We’re pleased Minnesota doesn’t have the death penalty. We’d be even more pleased if the states that do would yield to the outside pressures that are making lethal injection increasingly less practical.

Gov. Bill Haslam avoided stating his personal views about execution when Capitol Hill reporters questioned him last week about his decision to sign a bill expanding use of the electric chair. But he couldn't escape saying more when confronted Tuesday by the young women who attended the American Legion Auxiliary Volunteer Girls State conference in Nashville.

Responding to a high school student who pointedly described the death penalty as "inhumane" and an inefficient use of taxpayer money, Haslam conceded that moral and economic arguments could be made against capital punishment. But he said he respects voters' and lawmakers' decision to have the death penalty.

"A lot of us sitting here go, that sounds incredibly cruel and barbaric to say as a human you're going to take another's life," he said. "And that is a very valid, valid philosophical position to take. But you do have to remember that a lot of the crimes – almost all of the crimes -- that people are on death row for are horrific."

About 50 Methodist leaders and congregation members gathered at Legislative Plaza today to protest the recent bill approved by Gov. Bill Haslam and state lawmakers to allow the execution of death row by electric chair when lethal injection chemicals are not available.

Wednesday, 28 May 2014

At its core, the Eighth Amendment’s ban on cruel and unusual punishment protects “the dignity of all persons,” Justice Kennedy wrote, and its application “reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.” When it comes to the death penalty, that nation is changing. Since the 2002 decision, the court noted, six more states have abolished the death penalty, for a total of 18 plus the District of Columbia. Nowhere is the death penalty being reinstated.

Tuesday’s ruling may not affect more than a handful of cases, and capital punishment’s defenders will always have an argument about why this I.Q. test or that secret lethal-injection protocol comports with the Constitution. But the tide of history is flowing against them.

"Intellectual disability is a condition, not a number,'' Justice Anthony Kennedy wrote. "In using these scores to assess a defendant's eligibility for the death penalty, a state must afford these test scores the same studied skepticism that those who design and use the tests do, and understand that an IQ test score represents a range rather than a fixed number.''

That reasoning, of course, makes perfect sense to educators familiar with IQ tests. There is no reasonable rationale for the state to consider someone who scores 70 on an IQ test to be too intellectually disabled to execute but to have no problem sentencing someone to death with an IQ score a single point higher. Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. But as Justice Samuel Alito wrote in a dissent joined by fellow conservative Justices Antonin Scalia and Clarence Thomas, and Chief Justice John Roberts Jr., the court ruling is "likely to result in confusion.'' Alito must have been thinking about the Florida Legislature, where support for the death penalty remains strong and there is little interest in the mental capacity of inmates convicted of unspeakable crimes.

To understand why the Court’s ruling in Hall v. Florida is just, it’s instructive to review just how hard Florida has tried to execute Hall over the decades.

The plaintiff came to death row in 1978 after killing a pregnant woman and a deputy sheriff. Before Atkins, the Florida Supreme Court had declared that Hall had been significantly “mentally retarded” his whole life but that he still was eligible for the death penalty because there was no constitutional rule precluding such executions. Then, in Atkins, the Supreme Court by a vote of 6-3 recognized just such a rule, declaring that the execution of the intellectually disabled was a violation of the Eighth Amendment. So Florida promptly changed its tune and declared that Hall was not mentally disabled enough after all.

Under the state’s post-Atkins standard, overwhelming evidence that Hall is functionally illiterate, is unable to understand adult conversation or activities, and was developmentally disabled as a child was irrelevant to determining whether he fell under the Atkins exception. This was so in Florida because his IQ-test scores hovered between 60 and 80, often above the arbitrary cutoff of 70 that the state had adopted. To make matters more definitive, at least from the state’s perspective, officials refused to account for any standard error of measurement embraced by the scientific community.

In this way Florida—and states like Georgia and Texas, too—flouted the Atkins rule by rendering its mandate almost unrecognizable. Can’t lawfully execute the mentally disabled? No problem, they concluded, we’ll just change the definition of disability. That will be much harder to do after Tuesday’s ruling. By a 5-4 vote, with Justice Anthony Kennedy again the swing vote, the Court has refined and broadened Atkins’s scope. Florida’s onerous rule “disregards established medical practices,” Kennedy wrote for the majority, and those practices require courts to consider the sort of evidence Florida refused to consider in Hall’s case. Will it be enough to spare his life for good? Stay tuned.

Following the decision in Atkins, several states took steps to undermine it. I’ll get to Texas in a moment, but let’s begin with Florida: Florida enacted a law that required that a capital defendant seeking to avoid execution on the basis of Atkins to first establish that he has an IQ of 70 or below, and the Florida Supreme Court then interpreted this law to be an inflexible requirement.

This rule departed from the AAIDD and APA definition in two critical respects: First, IQ scores, just like the GPS application on your smart phone, have an inherent measuring error. It is well-established that IQ scoring has a standard error of measurement (or SEM), and that standard error is five points. Consequently, the intellectual functioning identified by an IQ test is in the range of intellectual disability if it falls between 65 and 75.

Second, deficits in adaptive functioning are as important to the clinical definition as intellectual functioning, yet the Florida statute (at least as it was interpreted by the Florida Supreme Court) made those limitations entirely irrelevant if a defendant had an IQ score of 71. As the APA put it in a brief it filed with the Court on Hall’s behalf: “Relevant clinical authorities all agree that an individual with an IQ score above 70 may properly be diagnosed with intellectual disability if significant limitations in adaptive functioning also exist.”

Hall is rhetorically strongest when it suggests that, in the realm of scientific concepts, the professionals, and not the politicians, are the authorities. Legislators or judges in Tallahassee (or Austin, for that matter) do not get to ignore the SEM just because it might get in the way of executions.

By failing to take into account the standard error of measurement, Florida’s law not only contradicts the test’s own design but also bars an essential part of a sentencing court’s inquiry into adaptive functioning. Freddie Lee Hall may or may not be intellectually disabled, but the law requires that he have the opportunity to present evidence of his intellectual disability, including deficits in adaptive functioning over his lifetime.

“The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.”

Now if we could only get the court to recognize that state executions also deny that basic dignity.

The court’s ruling in Hall v. Florida divided the justices, 5-4, along ideological lines. The closely watched decision marked the first time the justices have offered guidance to the states in this area since their landmark 2002 ruling in Atkins v. Virginia barring execution of the intellectually disabled.

Kentucky and Virginia have fixed-score cutoffs identical to Florida’s. Arizona, Delaware, Kansas, North Carolina and Washington, Kennedy said, have statutes that could be interpreted to provide a bright-line cutoff leading to the same result.

“The direct impact is only on Florida and those handful of states that have adopted this rigid and arbitrary rule,” said James Ellis of the University of New Mexico School of Law, who argued and won the 2002 decision.

“But, more broadly, the way in which the majority opinion makes clear that in making Atkins decisions courts have to be open to a wider range of evidence about whether this person has intellectual disability, including evidence about impaired functioning, may have implications in states beyond the handful who are clearly out of compliance today,” he said.

In Florida, Gov. Rick Scott was not ready to concede defeat. "Capital punishment is something that's a solemn duty that I have, and I take it very seriously," he said. "But I'll review that case when I see it."

Scott's comments, however, seemed little more than an attempt to save face. "Obviously, Florida is going to have to change," says Cornell Law School professor John Blume — as will Virginia, Kentucky and Alabama.

Blume, who heads a project at Cornell that monitors death penalty statistics nationwide, notes stark differences in results between states like Florida that have a fixed statistical cutoff for IQ versus those that allow a range to account for the margin of error. In states that set a fixed cutoff, the success rate for avoiding the death penalty on the basis of intellectual disability is less than 5 percent, versus 28 percent in states that account for the margin of error.

A man who had shot to death his four young children, for reasons known only to him, sat in the wooden chair reserved for him at the Riverbend Maximum Security Institution in Nashville. His body was strapped tight and his head was freshly shaved, to enhance the conductivity.

I could see him, but he could not see me. We sat perhaps 30 feet apart, on opposite sides of a one-way glass partition that separated those who would walk away that September night in 2007 from one man who would not.

The electric chair had not been used in Tennessee since 1960, a reflection of a nation’s discomfort with a procedure that had come to be seen as gruesome, if not cruel. But the condemned man, Daryl Holton, 45, had been given a choice between lethal injection and electrocution. To the dismay of prison officials, he had chosen the latter — again, for reasons known only to him.

Saturday, 24 May 2014

Welcome to the macabre absurdity of the modern American death penalty. Of course, death by lethal injection became the standard method only because earlier methods — from hanging to the firing squad to the electric chair — were deemed too “barbaric,” not because the state was taking a human life, but because the method of execution offended the sensitivities of the public in whose name the killing is carried out.

By now, it is clear that lethal injection is no less problematic than all the other methods, and that there is no reason to continue using it. But capital punishment does not operate in the land of reason or logic; it operates in a perpetual state of secrecy and shame.

In most cases, it is conducted late at night, behind closed doors, and as antiseptically as possible. Were it to be done otherwise, Americans would recoil in horror, as they did after the debacle in Oklahoma. Mr. Bucklew’s unusual case shows that death-penalty supporters can’t have it both ways. If they want the United States to remain a global outlier by killing its citizens, they must accept that there are no clean executions.

So what do you do when you’re a death penalty state and the rest of the civilized world refuses to sell you the drugs for your lethal injections? Turn back the clock, apparently.

In Tennessee, Gov. Bill Haslam on Thursday signed a law that would allow prison officials to strap the condemned into an electric chair should drugs become unavailable for lethal injections. In Wyoming, there’s talk of bringing back the firing squad (the state already allows for poison gas as a backup, but apparently it doesn’t have a gas chamber). What’s next, mass public hangings? Drawing-and-quartering, with heads left on pikes at the city gates?

That states are looking to previously rejected execution methods indicates just what a problem this has become. Most of the industrialized world — the United States’ peer nations — did away with this barbaric practice long ago. European-based pharmaceutical companies refuse to export drugs to prisons for use in executions. The American Medical Assn., the American Board of Anesthesiologists and the American Nurses Assn. proscribe members from conducting executions, and activist groups are pressuring the American Pharmacists Assn. to adopt a similar ethics policy. Those policies’ influence, though, is limited: State-level laws shield most doctors from sanctions.

Friday, 16 May 2014

Jurist Forum posts, "Behind the Hangman's Cloak," by Brandon L. Garrett, a University of Virginia Law professor, and the author of Convicting the Innocent. It was edited by Brent Nesbitt.

"We're going to close the blinds temporarily," the Oklahoma corrections officer told those in the witness room, when Clayton Lockett's execution started to go terribly wrong. None of those outside could see what happened during the almost 45 minute-long botched execution, and the "shuttered blinds" became a metaphor for the modern administration of the death penalty. Behind the curtain, "unknown drugs" and "untested protocols" were used "behind a wall of secrecy," said Lockett's lawyer Cheryl Pilate. Challenges to such secret protocols have been brought in a range of states, including Georgia, Ohio, Oklahoma, Louisiana, Missouri and Texas; one federal judge in a recent dissent [PDF] argued the state cannot simply hide "behind the hangman's cloak." But following that botched execution the Oklahoma Court of Appeals approved a six-month stay of executions to at least review the matter.

Will we finally see what lies behind the hangman's cloak? Some even suggest that we shouldn't try. Boer Deng and Dahlia Lithwick, writing for Slate, make the provocative claim that it is death penalty opponents that have put states in a bind, with European companies refusing to supply the drugs used in executions, and doctors adopting the view that it violates the Hippocratic Oath to participate in capital punishment. Of course, the Eighth Amendment requires humane executions, whether or not the "market" can supply lethal drugs on the cheap. They also claim that lethal injection has "become more gruesome and violent in recent years."

Thursday, 15 May 2014

"Still Tinkering," is the title of Linda Greenhouse's latest New York Times commentary. The paper's former Supreme Court reporter is now a contrubing OpEd writer. Here's the beginning of this must-read:

Twenty years have passed since Justice Harry A. Blackmun, at age 85 and just months away from retirement, renounced the death penalty. “From this day forward, I no longer shall tinker with the machinery of death,” he declared.

There’s been an awful lot of tinkering going on lately.

Oklahoma’s botched attempt last month to carry out an execution with a previously untried combination of lethal drugs from secret sources shone a spotlight on how states are scrambling to deal with the increasingly unreliable supply of the ingredients of the once standard three-drug cocktail. Clayton D. Lockett, the condemned Oklahoma murderer who was seen writhing and moaning after the badly administered first drug failed to render him fully unconscious, died of an apparent heart attack nearly two hours after officials had started trying to kill him.

Given the Roberts court’s conservative trajectory, it may seem a waste of energy even to wonder whether that incident, or the disarray on the whole lethal injection front, might persuade the justices to take another look at the death penalty.

Friday, 02 May 2014

The most telling moment in Oklahoma’s botched execution of Clayton Lockett came six minutes after the purportedly lethal drugs had begun to enter the condemned man’s body through an intravenous tube. It was a moment that pointed up the contradictions, incoherence, and bad faith of the death penalty as it is practiced in the United States, the only advanced democracy on earth that retains it.

When I read about the crimes Lockett committed, I wish I could support capital punishment. When I read about what Warner did, I want to strangle him with my own hands. But revenge is not the same thing as justice, and karmic retribution is not a power I trust government to exercise. The death penalty has no place in a civilized society.

Did anyone really believe that Gov. Mary Fallin of Oklahoma would allow a truly independent review of the “execution” — death by torture is more like it — that shocked the conscience of the nation and the world on Tuesday night?

It was Governor Fallin’s insistent demand for speed in killing Clayton Lockett that forced the state to use an untested mixture of toxic chemicals in the execution, during which Mr. Lockett sat up, moaned and writhed in pain. (He eventually died of a heart attack.) The state Supreme Court tried to stop the procedure, a lower court judge said it was clearly unconstitutional and lawyers warned for months that the state didn’t know what it was doing. But she overruled the court and pushed ahead with the execution, eager to show that no liberal judges would stop her from dispensing her state’s brand of justice.

Any serious investigation of the fiasco would have to closely examine the governor’s conduct leading up to it.

People who subscribe to different belief systems sometimes have irreconcilable views on public policy issues with a strong moral component. The death penalty is one of those issues. But conservatives are supposed to be skeptical of government. That is a fundamental part of their belief system. And, except perhaps war, there’s no issue for which the consequences of government error or abuse of power are more absolute, irreversible and profound. Even if they support the idea of capital punishment in principle, it ought to be one of the last issues for which conservatives would be willing to abandon that skepticism. Yet it seems to be one of the issues for which their skepticism is most negotiable.

On Tuesday, once the witnesses were brought in and seated, they waited. ”You just sort of sit there, maybe talking very quietly to the person next to you, until the blinds rise,” Branstetter told The Post the day after the execution. Branstetter, the enterprise editor at the Tulsa World, spends part of her time reporting and part of her time managing a team. She has witnessed three executions in the past, most recently the January execution of Michael Wilson.

Her experience attending other executions is part of the reason she went to this one; Oklahoma was using a new lethal injection drug for the first time, and the secrecy surrounding the drugs had caused a protracted argument that extended to the state’s courts and lawmakers. Branstetter had been there in January when Michael Wilson was killed with a three-drug mix that had been obtained from a compounding pharmacy. Wilson’s final words, spoken after the injections: “I feel my whole body burning.” So she wanted to go to see what was different this time.

So let's bring back the guillotine—and once it forces us to confront the barbarity of needlessly killing people who pose no threat to us, let's abolish the death penalty. Countries without the death penalty get along just fine, and I don't think Americans will be able to stomach it once they look it squarely in the face.

The recently botched state-sanctioned deaths – at least six in the last four-and-a-half-years – are terrible. But they're also distraction from the truth that we refuse to confront as a nation: every execution is just as brutal, just as shameful, and just as much a blow to justice as what happened to that man on Tuesday night.

As the world is now well aware, my state's effort to execute two prisoners in the same day for the first time since 1937 turned into a horrible miscarriage. We should have seen it coming, of course, as the secrecy and the scarcity of the drug cocktail in the execution mixed with the bickering and the borderline constitutional crisis in the halls of Oklahoma government, where all hell was breaking loose. Until, that is, hell came to the death chamber.

Should a system that is not fail-proof have a penalty as certain as death?

And now, as horrifically demonstrated this week in Oklahoma, we're not even certain how to kill people. The Innocence Project lists 18 people who were sentenced to die and later exonerated. We were going to kill them.

Wednesday, 30 April 2014

Officials in Oklahoma had many reasons to suspect there would be problems with the execution of death-row inmate Clayton Lockett last night. They were using an untested mix of lethal drugs, never previously used in that dosage combination, obtained through secret means, which precluded the possibility of oversight from attorneys or medical officials on the quality of the drugs. They were warned by medical experts, and asked by defense attorneys, to open up the process to review—by the courts, by doctors, by some members of the public. Yet they refused.

Although officials in other states have also denied requests for transparency about lethal injection protocols, Oklahoma's legal conflicts on the issue have been particularly intense. When the state supreme court early last week sought to halt the process, state lawmakers quickly moved to try to impeach the justices. And the governor, Mary Fallin, issued an order decreeing that she would not abide by the judicial ruling of her state's highest court.

A battle of political wills over Oklahoma's secretive lethal-injection protocol turned into a gruesome scene of macabre theater Tuesday evening, as the state botched the execution of one inmate and halted that of another scheduled later in the night.

The mishandling reflects the extraordinary and surreptitious lengths a handful of active death-penalty states are now willing to go to in order to continue their executions, capital-punishment opponents say, and represents just the latest episode in a string of disturbing events on Oklahoma's death row in recent months.

Moreover, Oklahoma's ongoing morass is a symptom of a national death-penalty system in crisis, a system that is finding it increasingly difficult to procure the drugs necessary to carry out death sentences amid boycotts from European manufacturers and reticence from licensed physicians.

Oklahoma, like many other states that execute prisoners by lethal injection, has been intensely secretive about the drugs it uses. In 2011, Hospira, the only American company that made thiopental—a barbiturate anesthetic once used as the first of three drugs in a lethal injection—halted production after European officials threatened the company with an embargo. From there, states have shifted toward new, secret sources for drugs. Claiming they wanted to shield suppliers from threats, states across the country passed legislation that would maintain the secrecy of where the drugs came from. Oklahoma even bought the drugs used in Lockett's execution with cash to ensure that the transaction would be hard to detect.

The stories are sometimes grotesque. In Texas, an “obviously frightened and somewhat nervous” man had to help his executioner find the best vein to administer his lethal injection. In Illinois, another man suffered “excruciating pain” because of a bad tube, which had been inserted going the wrong way — toward the fingers, not the heart. In 1988, a syringe popped out of another man’s arm, “spraying” fluid at execution witnesses.

Tuesday night, one more botched execution by lethal injection occurred. Clayton Lockett, according to the Associated Press, “began breathing heavily, writhing, clenching his teeth and straining to lift his head off the pillow,” approximately 10 minutes after an executioner pumped into him a clandestinely-procured lethal injection. The state initially blamed the problem on the 38-year-old’s veins, claiming there had been a rupture. In the end, he died of a heart attack.

Tuesday, 29 April 2014

Judicial independence died last week in Oklahoma. It was killed by shortsighted members of the executive and legislative branches of government, and by gutless judges.

The sorry story began on Monday, April 21, when the Oklahoma Supreme Court stayed the execution of two convicted murderers so that the justices could evaluate the legality of the state's injection secrecy law. That law had allowed state officials to prevent the disclosure of basic information about the drugs used in lethal injections, and was declared unconstitutional late last month by a trial judge who said, "I do not think this is even a close call."

Things got complicated because there are two high courts in Oklahoma — one that focuses on "criminal" matters and one that focuses on "civil" matters. The criminal court, the Oklahoma Court of Criminal Appeals, said it had no jurisdiction to look at the injection secrecy matter. The civil court, the Oklahoma Supreme Court, said that the Court of Criminal Appeals did have jurisdiction.

There was open conflict between the courts. The state Supreme Court criticized the Court of Criminal Appeals for not accepting the appeal and for not halting the executions. The criminal appeals court criticized the state Supreme Court for intruding upon what its judges considered the purely "criminal" matter of execution protocols.

"They say lethal injection causes no pain. How do they know? Did someone come back from the dead and say they didn't feel anything?" These prolific words, uttered by inmate Groves in the first season of HBO's series OZ, had always resonated with me. Even before I became a criminal defense attorney in Oklahoma, I realized there was something slightly questionable about our government touting a method of execution as painless, or somewhere near that, when there is no actual data regarding the effects of the process; one can't imagine there are many folks lining up to volunteer to test these cocktails. Consequently, our society ends up testing them on the inmates.

On Tuesday, for the first time in 77 years, Oklahomans will execute two people.

They are Clayton Lockett and Charles Warner, who committed terrible crimes. But the rush to see them die is misguided.

Last week, the Court of Criminal Appeals, the Oklahoma Supreme Court, Gov. Mary Fallin and some legislators squabbled over who could, or should, grant a stay of execution while the courts considered the validity of the condemned men’s claim that they had a right to know where the state obtained the drugs that would kill them. In the end, the Supreme Court held they had no such right, and the stays were lifted.

BARRING something unforeseen, Charles Warner and Clayton Lockett will be executed Tuesday, just hours apart, at the Oklahoma State Penitentiary in McAlester. Their appeals have engendered debates about Oklahoma’s death penalty process. Tellingly, none of this has been about the men’s guilt or innocence.

Friday, 25 April 2014

The Oklahoma attorney general says the department of corrections is ready and willing to carry out the state's first double execution since 1937.

In a filing with the Oklahoma Court of Criminal Appeals, the attorney general said there was no need to change execution dates because of an executive order this week by the governor, and the state was prepared. Clayton Lockett and Charles Warner are set to be executed at 6 p.m. and 8 p.m. respectively on Tuesday, the filing said.

The attorney general wrote that barring an intervention from the Court of Criminal Appeals, the executions will proceed as scheduled.

A lawmaker said Thursday that he will pursue the impeachment of five Oklahoma Supreme Court justices, despite the dissolution of execution stays issued late Wednesday.

Rep. Mike Christian, R-Oklahoma City, filed articles of impeachment Wednesday saying the state Supreme Court acted outside of its scope when five of the nine members voted to issue stays for death row inmates Clayton Lockett and Charles Warner.

Christian said staying an execution date is the exclusive domain of the Court of Criminal Appeals.

And:

House Speaker Jeff Hickman, R-Fairview, said Christian's resolution will be reviewed to determine if there is merit to move forward with impeachment proceedings.

"These are very serious charges being put forward and are not to be taken lightly," Hickman said.

House Minority Leader Scott Inman, D-Del City, said what occurred didn't rise to the level of impeachment.

Corrections Department spokesman Jerry Massie said officials are not clear at this point exactly when in the day each execution will take place.

“We are planning for any eventuality,” Massie said.

Executions in Oklahoma are typically performed at 6 p.m., although the Corrections Department is not legally bound to perform executions at any specific time of the day.

Additionally, Massie said Corrections officials cannot confirm both executions will take place on Tuesday.

“We’re having those discussions,” Massie said. He would not elaborate on whether other state agencies or offices were involved in those discussions.

Massie said no matter when the inmates are put to death, the state plans to use the mixture of the manufactured drugs midazolam, pancuronium bromide and potassium chloride that the attorney general has recommended.

Attorney Seth Day, who represents both men, called the ruling unacceptable and told CNN affiliate KFOR that there was no way to know if the prisoners' executions "would be carried out in a constitutional and humane manner."

"It's not even known whether the lethal injection drugs to be used were obtained legally, and nothing is known about their source, purity, or efficacy, among other questions," he told the station. "Oklahoma's extreme secrecy surrounding lethal injection undermines our courts and democracy."

State supreme courts typically take weeks or months to rule on constitutional challenges. Yesterday’s decision took a little over forty-eight hours. The timing of the opinion has raised suspicions that the court was motivated by political pressures.

“I can only conclude that the Supreme Court caved in the face of unconstitutional and uncalled for attacks by the legislature and the governor,” said Madeline Cohen, an attorney representing Mr. Warner.

Governor Mary Fallin issued an executive order Tuesday contesting the Court’s “constitutional authority” to issue a stay of execution, even though the Supreme Court only acted after Oklahoma’s top criminal court denied jurisdiction over the matter. And just hours before the Supreme Court issued its opinion, Republican state Representative Mike Christian introduced a resolution to impeach the five justices who voted in favor of delaying the executions, accusing them of “willful neglect of duty.”

The Oklahoma Supreme Court made the right decision Tuesday in issuing the stay until those issues could be digested. A short time later, though, Gov. Mary Fallin announced that the Supreme Court lacked the authority to stay the execution, and issued her own seven-day stay (after which Lockett presumably would be executed). Then a legislator introduced a bill to start the impeachment process against the Supreme Court judges who voted to stay the execution.

Late Wednesday, the Supreme Court reached the hasty -- and wrong -- conclusion that Lockett and another condemned murderer, Charles Warner, do not have a right to know how the killing drugs were made. The court simultaneously lifted its stay of execution, allowing a day or so for another appeal before the decision is final. The governor announced Thursday that the two men would be executed Tuesday.

So the judicial process appears to have been hijacked by the political process, leading to a rushed decision that two men should be killed by the state with unvetted drugs, and with a crass disregard for constitutional rights.

Regardless of your stance on the death penalty, these are not the acts of a deliberative judicial system.

In regard to abortion, 54 percent feel it should be legal in “all or most cases,” according to the Pew Research Center, while 40 percent feel it should be illegal in all or most cases. Since 1995, the percentage favoring abortion has never risen above 60 percent.

What do these numbers say about the state of a culture of life in the United States? They say that while there may be little disagreement about what constitutes murder, we’re likely to long remain divided over what it means not to kill.

In his latest book, Six Amendments: How and Why We Should Change the Constitution, retired United States Supreme Court Justice John Stevens reminds us why some of the most frustrating judges are the ones who have left their courts behind. What would American law look like today, how different might it be, if this moderate justice had been willing to vote on the Court all those decades for what he now believes to be just?

For example, a man who consistently upheld capital convictions and the death penalty itself for over 35 years, who helped send hundreds of men and women to their deaths by failing to hold state officials accountable for constitutional violations during capital trials, who more recently endorsed dubious lethal injection standards because he did not want to buck up against court precedent, now wants the Eighth Amendment to read this way, with five new words added:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.

The writing of another chapter in Texas’ troubled history with the death penalty is underway, and is being shaped by questions about the state’s supply of lethal injection drugs and the right of the public to know what is being used in its name.

Last week, State District Court Judge Suzanne Covington in Austin delivered a limited victory for transparency and the rights of defendants when she ordered the Texas Department of Criminal Justice to tell the attorneys of two death row inmates the source of the new supply of pentobarbital it plans to use in upcoming lethal injections. The state had argued secrecy was needed to protect the safety of the maker of the pentobarbital; Covington did not order the state to publicly disclose the supplier’s name.

The next morning a three-judge panel of the 3rd Texas Court of Appeals rightly upheld Covington’s ruling. Friday afternoon, however, the Texas Supreme Court stopped Covington’s order from taking effect until justices could study the issue further.

And:

Given the need to honor constitutional protections and transparency, we see no compelling reason why the state shouldn’t reveal information about its supply of pentobarbital.

Thanks to good work by Katie Fretland of the Colorado Independent, a nonprofit news operation, we know that even matters of life and death are not immune from lawyerly humor.

Fretland recently wrote about states’ ongoing problems in procuring execution drugs. She got 172 pages of emails sparked by Texas Assistant Attorney General Laura Grant Turbin’s January 2011 request for advice from assistant AGs around the nation on using different drugs for executions.

“Records show Oklahoma officials wanted perks for helping Texas in search for scarce lethal injections,” said the headline.

The case itself has many twists and turns, with evidence, even confessions, kept from the jury. Byrom's only admittance of guilt was when the sheriff asked her if she was going to leave her son, Edward Byron Jr., to take the blame for the murder, and she replied, "No, he's not going to. I wouldn't let him. ... I will take all the responsibility. I'll do it."

Byrom, who is one of two women on death row in Mississippi, was convicted of killing her husband, who was, according to many accounts, abusive to her and her family. But according to the Jackson, Miss. Clarion-Ledger, Byrom only admitted guilt when the sheriff asked if she was going to allow her son to take the rap for the murder. “No, he’s not going to. I wouldn’t let him. … I will take all the responsibility,” she said, according to the paper.

Byrom’s son, Edward Byrom Jr., confessed to killing his abusive father four times – in three letters smuggled to his mother in jail, and once to a court-appointed psychologist – CNN reports. Byrom’s attorneys, who were trying their first capital murder case, never had the confessions entered into evidence, and Byrom Jr. took a plea deal for a reduced sentence.

The son’s reported confessions are among the chief reasons Byrom’s advocates believe she deserves a stay of execution. The fact that a jury never heard any of Byrom Jr.’s confessions is a “perversion of American jurisprudence,” according to Warren Yoder, executive director of the Public Policy Center of Mississippi.

In this case, everyone agrees that errors were made. Every appellate judge to review the case of Michelle Byrom has agreed that the trial was riddled with errors. The Mississippi Supreme Court stated in its majority opinion, “we have found in this case that during this trial, there were instances of error committed by the trial court.” The dissenters at the Supreme Court agreed, detailing the numerous errors that occurred at trial. The Supreme Court majority looked at these errors and found them to be harmless. However, in death penalty cases no error can be harmless.

I, unlike most judges, know from personal experience what it is like to be wrongfully prosecuted. In 2003 when this case was before the Mississippi Supreme Court, I was facing my own prosecution at the hands of an overzealous prosecutor. Because of my own wrongful prosecution I was not able to add my voice to the record, and I was not allowed to vote to reverse the conviction of Michelle Byrom.

You can't make it up. A husband horribly abuses his mentally ill wife and his son for years, even forcing her to have sex with others to videotape.

Someone then kills the abuser. A nightmare of legal maneuvering then follows with her accused of paying another man to kill her husband, even as her son confesses to the murder several times, as does she once while under the influence of mind-altering drugs. The judge doesn't allow the jury to see evidence that might have helped her.

Meantime, neither the son nor the supposed hit man goes to prison for murder, and a newspaper quotes the prosecutor saying the alleged contract killer didn't actually do it.

The woman ends up on death row because, as often happens to poor people, her crappy attorneys can't figure out how to keep her from being executed.

Monday, 24 March 2014

I don't know which Byrom confession I believe but it doesn't matter. The woman Mississippi wants to execute this week did not get anything close to a constitutionally fair trial. The execution of this woman, in these circumstances, would send a series of chilling message from Mississippi to the rest of the world. It would say the state's justice system still won't acknowledge the import of domestic abuse. It would say that the constitutional right to effective counsel is meaningless. And it would say that the justice system is more interested in protecting its own than in seeking the truth about what really happened to this wretched family.

Friday, 21 March 2014

Tuesday’s decision by the N.C. Court of Appeals to send back to the trial court a lawsuit by N.C. death row inmates thrusts the state into thicket of the nationwide execution drug protocol controversy.

Thursday, 20 March 2014

The criminal justice committee of the Louisiana legislature was scheduled Wednesday to hear House Bill 328 this week. Filed by Rep. Joe Lopinto, R-Metairie, the bill would "expand the execution options" available to Louisiana.

The hearing was postponed, but as of late Wednesday the plan was to reschedule it.

Lopinto insists he is not offering the bill because he favors frying people. Instead, the proposed law came in response to the unseemly scramble Louisiana (and other states) have gone through trying to buy the poison used in lethal injections.

The House Committee on the Administration of Criminal Justice approved a bill that would let district attorneys automatically seek the death penalty for people accused of murdering prison or jail employees. The legislation could broaden the number of cases for which capital punishment is an option.

The bill: The legislation is sponsored by Rep. Kenny Havard, R-Jackson, who said he has many correctional facility employees in his district. Havard essentially wants to treat the murder of a correctional facility employee the same as the murder of a police officer.

A Louisiana House committee voted 14-1 Wednesday in favor of advancing legislation that would expand the application of the death penalty.

Under House Bill 278, the killing of a prison worker would become a capital crime. First degree murder already covers the deaths of firemen, peace officers, Louisiana State Police Crime Laboratory civilian employees, taxi drivers, young children and the elderly.

In the decades he spent filing stories from Jacksonville after visits to Florida’s execution chamber, former AP reporter Ron Word saw a lot that still lingers in the back of his mind. There are the images from the old days of the electric chair: The executioner’s black hood, only visible through a slit in the wall; or the electrician’s thick rubber gloves, worn in the event of mechanical problems. And there are the dramatic episodes: the execution of Ted Bundy; electrocutions in which “there were flames coming off the inmates’ heads”; the botched, bloody death of Allen Lee “Tiny” Davis in 1999, in a special electric chair built for his 344-pound body, then never used again.

There were the times the Florida Department of Corrections (DOC) tried to alter the narrative. Once, Word remembers, in the early days of lethal injection, he got a call from prison officials telling him, “You’re gonna’ have to change the times in your story. They don’t agree with our times.” Word refused. Another time, after the agonizing 34-minute death of Angel Diaz — executioners pushed the IV needles into his flesh instead of his veins — Word says the DOC “pretty much lied to us that night.” Prison officials claimed Diaz had some sort of liver problem, “but as it turned out there was nothing wrong with his liver. It was because of the procedure they used.”

That happened around Christmas of 2006. Afterward, Florida temporarily halted executions and revised its protocol. And that’s when they brought in the moon suits.

“At all Florida lethal injections, a man in a purple moon suit leans over the dying inmate to listen for a heartbeat and feel for a pulse,” Word reported in the summer of 2007. “After a few seconds, he nods, and the witnesses are informed that the death sentence has been duly carried out. The man is a doctor, and the gear shields his identity — not just from the prisoner’s family and friends, but from the American Medical Association, whose code of ethics bars members from participating in executions.”

Executions are slowing around the country, but leave it to Florida to stand out in the worst way.

Our lovely governor, Rick Scott, has executed more people in a single term than any other modern governor of Florida, according to the Orlando Sentinel.

Since 1976, Florida has ranked fourth in the country for the number of executions. According to the Death Penalty Information Center, Florida is leading the way in 2014 with three government-sanctioned murders under its belt — more than any other state.

Robert Lavern Henry is set to be executed this week for killing two women in 1989 by beating them with a hammer and setting them on fire in a Deerfield Beach fabric store.

He would be the 16th prisoner executed under Gov. Rick Scott's watch, more than any other modern Florida governor in a single term.

At a time when other states are curtailing or outlawing executions, Florida is bucking the trend. A swelling number of death sentences handed down in the 1990s are reaching the ends of their appeals. Florida also is experiencing a rare window of relatively few legal challenges, botched executions or political infighting over the issue.

"It seems like the push now in Florida is to move forward with more dates, and that is different than what we see in the rest of the country," said Richard Dieter, director of the nonpartisan Death Penalty Information Center in Washington.

We remain the only state that doesn’t require unanimous jury recommendations for the death penalty. Isn’t that wonderful?

Instead of making sure that innocent people aren’t executed, Florida seems intent on speeding up the process. In a red-blooded, gun-loving, he-man state like Florida, this idea goes over big time.

Too bad we also lead the nation in death sentence exonerations. In other words, Florida is tops in sentencing people to death who don’t deserve it. Luckily, we have exonerated a lot of people. Who knows how many more got executed who shouldn’t have been?

The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.